R v Blundell
[2019] SASCFC 84
•8 July 2019
SUPREME COURT OF SOUTH AUSTRALIA
(Court of Criminal Appeal: Criminal)
R v BLUNDELL
[2019] SASCFC 84
Judgment of The Court of Criminal Appeal
(The Honourable Chief Justice Kourakis, The Honourable Justice Peek and The Honourable Justice Hughes)
8 July 2019
CRIMINAL LAW - PARTICULAR OFFENCES - OFFENCES AGAINST THE PERSON - ASSAULT - CIRCUMSTANCES OF AGGRAVATION AND AGGRAVATED ASSAULTS - ASSAULT OCCASIONING ACTUAL BODILY HARM
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - ADEQUACY OF WARNING - VISUAL IDENTIFICATION GENERALLY
CRIMINAL LAW - EVIDENCE - IDENTIFICATION EVIDENCE - WARNING ADVISABLE OR REQUIRED - EFFECT OF FAILURE TO WARN
The appellant was convicted of aggravated causing harm with intent to cause harm contrary to s 24(1) of the Criminal Law Consolidation Act 1935 (SA).
At just after midnight, Mr Ward was assaulted with a large metal garden ornament at a block of units. The only issue was whether the appellant was the perpetrator.
Mr Ward described the incident as a blur and selected a photograph of a different person in a photographic identification procedure. Ms Castellari, who resided at Unit 4, did not see the assault but gave evidence that she saw, from her upstairs bedroom window, the appellant as he looked up for “a split second” as her sensor light came on; he was walking towards Unit 3 (where his mother resided) and was carrying a phone in his left hand. Ms Williams, the partner of Mr Ward, resided at Unit 6 and gave evidence that she came out during the assault and saw the perpetrator’s face from a metre away. During her 000 call she described him as “a random guy” and said that she did not “even really know what he looked like”.
On 24 March 2016, a meeting was held at Unit 6 between Mr Ward, Ms Williams, Ms Castellari and a Housing SA representative at which someone informed Ms Williams that the appellant was the person who assaulted Mr Ward.
On 6 April 2016, Ms Castellari and Ms Williams participated in separate photographic identification procedures. Both Ms Castellari and Ms Williams selected a photograph of the appellant.
The appellant relied on two grounds of appeal. (1) That the verdict is unsafe and unsatisfactory; and (2) that there was a miscarriage of justice occasioned by the learned trial Judge’s directions on the topic of the identity of the assailant.
Held, per Peek J (Kourakis CJ and Hughes J agreeing), allowing the appeal and ordering a re-trial:
1. The decision of the High Court in Domican v The Queen (1992) 173 CLR 555 requires that extensive directions be given to the jury as to the dangers of identification evidence tailored to the facts of the particular case. Section 34AB(3) of the Evidence Act 1929 (SA) does not alter that requirement. Craig v The King (1933) 49 CLR 429; Alexander v The Queen (1981) 145 CLR 395; Pitkin v The Queen (1995) 130 ALR 35; Smith v The Queen (2001) 206 CLR 650; Festa v The Queen (2001) 208 CLR 593; R v Smith (2017) 129 SASR 237 considered.
2. As to ground 2:
(a) The Judge directed the jury: “And here you have got two people making the identification of the accused. One person being mistaken is one thing, two people being mistaken about the same person is another thing”. This was highly unfortunate for a number of reasons.
(b) The Judge failed adequately to link particular relevant aspects of his identification directions to particular aspects of the evidence.
(c) The Judge’s directions as to Ms Williams’ evidence fell considerably short of what was required in the present circumstances of a serious danger of a subconscious bias to select a photograph of the appellant as being that of the offender, her memory having been severely compromised by the “displacement effect”.
(d) The Judge erred in that his directions failed to make sufficiently clear the following points concerning Ms Williams and her evidence: (a) she had previously seen the appellant at the Units (b) she stated in the 000 call that she did not know who the offender was and could not identify him (c) she was later told at the meeting of 24 March 2016 that the offender was in fact the appellant and (d) it was only after that meeting that she selected a photograph of the appellant in the photographic identification procedure.
3. As to ground 1: Had there been adequate jury directions, it could not have been established that a guilty verdict would have been unreasonable. M v The Queen (1994) 181 CLR 487 considered. R v Place (2015) 124 SASR 467; R v Klamo (2008) 18 VR 644; R v Shah [2007] SASC 68 discussed.
Criminal Law Consolidation Act 1935 (SA) s 24(1); Evidence Act 1929 (SA) s 34AB(3), 34AB(4), referred to.
Craig v The King (1933) 49 CLR 429; Domican v The Queen (1992) 173 CLR 555; Hirst v Police (2006) 95 SASR 260; Pitkin v The Queen (1995) 130 ALR 35; R v Burchielli [1981] VR 611; R v Carr (2000) 117 A Crim R 272; R v Klamo (2008) 18 VR 644; R v Place (2015) 124 SASR 467; R v Shah [2007] SASC 68; R v Turnbull [1977] QB 224, discussed.
Alexander v The Queen (1981) 145 CLR 395; Davies v The King (1937) 57 CLR 170; Festa v The Queen (2001) 208 CLR 593; M v The Queen (1994) 181 CLR 487; Mills v State of Western Australia (2008) 189 A Crim R 411; R v McGranaghan [1995] 1 Cr App R 559; R v Smith (2017) 129 SASR 237; Smith v The Queen (2001) 206 CLR 650; Strauss v Police (2013) 115 SASR 90, considered.
R v BLUNDELL
[2019] SASCFC 84Court of Criminal Appeal: Kourakis CJ, Peek and Hughes JJ
KOURAKIS CJ: I would allow the appeal and direct a new trial for the reasons given by Peek J.
PEEK J: The appellant was convicted by majority jury verdict of the offence of aggravated causing harm with intent to cause harm to Mr Jason Ward on 20 March 2016, contrary to s 24(1) of the Criminal Law Consolidation Act 1935.
The evidence at trial
The only issue at trial was whether the appellant was the assailant of Mr Ward, the victim of an undoubted assault. It was committed just after midnight on 20 March 2016 at a complex of six conjoined units, each side by side in a line facing the main West Lake at Semaphore Park. The units belonged to Housing SA. The assault occurred in the front yard (facing the lake) of Unit 6, it being the last unit at the southern end.
The prosecution witness Ms Rachael Williams resided in Unit 6; the victim, Mr Ward, was Ms Williams’ partner and he was staying with her that night. The appellant’s mother, Ms Deborah Blundell, resided in Unit 3; the appellant did not live there but did visit his mother from time to time. The prosecution witness, Ms Heather Castellari, resided in Unit 4.
At the site of the assault there was no street lighting. The only lighting was the low level light emitted by solar powered bollards along the lake edge. There was evidence that there were “lots of people coming and going … at all hours” and that those people were “[m]ainly men”. There was a car park at the unit complex and there was an additional public car park a very short distance away servicing the public park on the lake adjoining the unit complex. Members of the public used that area for barbeques, drinking and general relaxation.
In summary, the following evidence was adduced relevant to the question of the identity of the assailant.
Mr Jason Ward, described the incident as a “blur”. He picked someone other than the appellant at a photographic identification procedure.
Ms Heather Castellari, did not see the assault but heard a disturbance at about that time. She gave evidence that a bit later, her sensor light at Unit 4 came on and, as it did, she saw from her upstairs bedroom window the appellant below as he looked up for “a split second”. She stated that she recognised him as being the son of Ms Blundell, the resident at Unit 3. She said that he was carrying a phone in his left hand and that he was walking towards Unit 3. She said that she had seen him earlier that day, and a few times over the previous couple of weeks. On 6 April 2016 she performed a photographic identification procedure and identified his photograph as being of the person she had seen when her sensor came on (although she was no doubt equally identifying him as the son of Ms Blundell who she believed that person to be).
Ms Rachael Williams, Mr Ward’s partner, gave evidence that she came outside during the course of the assault on Mr Ward and saw the perpetrator’s face from about a metre away. She phoned 000 and in the recorded conversation with the operator described the assailant as “a random guy”. When asked whether she knew the offender, she said “No, no”, and later she said, “Well it was that really quick I don’t even really know what he looked like”. She also said “I don’t even know who the fucks are [sic]”.
On 6 April 2016, Ms Williams undertook a photographic identification procedure and purported to positively identify the appellant, despite her original statement during the 000 call that she could not do any such thing. Three matters of high importance were as follows.
First, Ms Williams had in fact previously seen the appellant at the Units from inside her lounge room window before the day of the assault but she in no way alluded to that in the 000 call. Indeed, it is clear that in that call she was asserting that the assailant was a complete stranger to her.
Secondly, there was evidence that Ms Castellari had been making continual complaints about the activities of Ms Blundell over a lengthy period of time and was actively attempting to have her evicted by Housing SA. The complaints appear to have related to alleged disorderly conduct by Ms Blundell, constant loud, raucous people coming from, and going to, her unit at all hours of the day and night and sundry other complaints; these complaints do not appear to have related to the appellant in any way. However, Ms Castellari immediately took up the present matter of the assault as another aspect of her continuing complaints against Ms Blundell. There were agreed facts at trial that on 21 March 2016 (the day after the assault) she made a complaint to Housing SA about the subject assault and stated that she had seen the appellant at the Units that night. As a result of that complaint, a representative of Housing SA convened a meeting at Unit 6 on 24 March 2016 at which were present: Mr Ward, Ms Williams, Ms Castellari and the Housing SA representative (“the meeting on 24 March 2016”). Neither Ms Blundell nor the appellant were present. On 29 March 2016, a Housing SA representative advised Ms Blundell that eviction proceedings would be commenced against her and she was indeed evicted from her unit shortly thereafter.
Thirdly, Ms Williams gave evidence that at the meeting on 24 March 2016, someone told her that the appellant was the perpetrator of the assault thus:
Q. Had anyone told you, between the events happening and you having a look at the photographs, that the perpetrator was Keiron, was Deborah's son. Had anyone told you that.
A. Yes, with the Housing Trust; when the housing manager came out.
Q. Before you saw the photograph.
A. Yes.
It is not unfair to say that Ms Castellari was somewhat coy in her evidence about this meeting. But she did say this:
Q. This assault occurred on 20 March; do you agree that on 24 March there was a meeting at Rachael's place, with the Housing Trust representative.
A. Yes.
Q. Was Mr Ward there.
A. Mr Ward.
Q. Jason.
A. Jason, I'm not sure if he was, or if he was in hospital or not. No, I think he was there, yes.
Q. And Rachael was there.
A. Yes, Rachael was there.
Q. And you discussed what was to happen with Deborah because her son had done this.
A. Well, we discussed everything and the housing proposed that we could go through the process of having her evicted.
As noted above, Ms Castellari in fact had not witnessed the assault but had apparently formed the view that it must have been the appellant. However, it was apparently conveyed to Ms Williams at the meeting on 24 March 2016 that the appellant was the assailant, as distinct from the merits or demerits of a process of reasoning that Ms Castellari may have adopted to come to that conclusion.
The DNA evidence
A large metal garden ornament (approximately 80cm long) that was clearly the weapon used to assault Mr Ward was found discarded in shrubs outside Unit 1. A swab was taken from the top of it which produced a mixed DNA profile with two contributors. There was extremely strong support for the proposition that Mr Ward was a contributor to the profile; and very strong support for the proposition that the appellant was not a contributor. I consider that one should proceed on the basis that the analysis showed two contributors, one being the victim and the other an unknown person, not being the appellant.
The lack of weight of the evidence if one subtracted that of Ms Williams
I consider it to be clear that if one were to subtract the identification evidence of Ms Williams from the case, the balance of the evidence could not support a guilty verdict. While the evidence of Ms Castellari may raise suspicion of the appellant, it goes little beyond showing that he was seen at a relevant time walking towards Unit 3, a place where he used to go quite innocently (and at which time Ms Castellari thought he was carrying a phone, not a weapon). Such evidence (taken together with the rest of the evidence) could not eliminate the possibility that the assault was the work of someone else. It was therefore really quite critical that clear and comprehensive directions concerning the evidence of Ms Williams, and all relevant matters surrounding it, were given to the jury.
The grounds of appeal
The amended grounds of appeal were as follows:
1. The verdict is unsafe and unsatisfactory; and
2. There was a miscarriage of justice occasioned by the learned trial judge’s directions on the topic of the identity of the assailant.
Particulars:
2.1 The learned trial judge did not, or did not adequately, direct as to the particular aspects of the recognition/identification evidence that undermined the prosecution case;
2.2 The learned trial judge erroneously presented the defence case to the jury on the basis of concoction and/or independent mistake on the part of the witnesses Williams and Castellari;
2.3 The learned trial judge refused to excuse the jury while counsel made submissions as to re-direction at the close of the summing up, such that the re-directions lost the imprimatur of the Court.
I will first consider Ground 2 as a whole and then proceed to Ground 1.
The principles in the High Court decision of Domican v The Queen and the requirement in 34AB(4) of the Evidence Act SA 1929
In 1992 in Domican v The Queen, the High Court held that extensive directions should be given to the jury as to the dangers of identification evidence. Thus, Mason CJ, Deane, Dawson, Toohey, Gaudron and McHugh JJ stated:[1]
Nevertheless, the seductive effect of identification evidence has so frequently led to proven miscarriages of justice that courts of criminal appeal and ultimate appellate courts have felt obliged to lay down special rules in relation to the directions which judges must give in criminal trials where identification is a significant issue.
Whatever the defence and however the case is conducted, where evidence as to identification represents any significant part of the proof of guilt of an offence, the judge must warn the jury as to the dangers of convicting on such evidence where its reliability is disputed. The terms of the warning need not follow any particular formula. But it must be cogent and effective. … Consequently, the jury must be instructed “as to the factors which may affect the consideration of (the identification) evidence in the circumstances of the particular case a warning in general terms is insufficient. The attention of the jury “should be drawn to any weaknesses in the identification evidence”. Reference to counsel’s arguments is insufficient. The jury must have the benefit of a direction which has the authority of the judge’s office behind it. It follows that the trial judge should isolate and identify for the benefit of the jury any matter of significance which may reasonably be regarded as undermining the reliability of the identification evidence. [Emphasis added] [Citations omitted]
[1] (1992) l73 CLR 555, 561.
Reference may also be made to other High Court judgments such as Craig v The King,[2] Alexander v The Queen,[3] Pitkin v The Queen,[4] Smith v The Queen[5] and Festa v The Queen.[6]
[2] (1933) 49 CLR 429.
[3] (1981) 145 CLR 395, 409 (Stephen J).
[4] (1995) 130 ALR 35, 38-39 (Deane, Toohey and McHugh JJ).
[5] (2001) 206 CLR 650, 667-668 [55]-[56] (Kirby J).
[6] (2001) 208 CLR 593, 643 (Kirby J).
Section 34AB(4) of the Evidence Act 1929 provides:
34AB—Identification evidence
(1) In a criminal trial, evidence of the identity of a person alleged to have committed an offence is not inadmissible, and is not to be excluded, merely because it was obtained other than by means of an identity parade involving a physical line‑up of persons.
(2) In a criminal trial, evidence of the identity of a person alleged to have committed an offence obtained by means of an identity parade is to be excluded unless—
(a) —
(i)an audio visual record of the identity parade is made and kept in accordance with the regulations; and
(ii)if the regulations prescribe procedures for the conduct of an identity parade—the identity parade is conducted in accordance with the prescribed procedures; or
(b)the judge is satisfied that the interests of justice require the admission of the evidence despite the failure to comply with paragraph (a).
(3) In a criminal trial where the identity of a person alleged to have committed an offence is in issue, the judge must, if evidence of the identity of the person is admitted, inform the jury—
(a) of the need for caution before accepting identification evidence; and
(b)of the reasons for the need for caution, both generally and in the circumstances of the case.
(4)In giving any such information, the judge is not required to use any particular form of words but may not suggest that identification evidence obtained from an identity parade by any means other than by a physical line‑up of persons is inherently or intrinsically less reliable than evidence obtained from an identity parade by such means.
(5) To avoid doubt, this section does not—
(a) make evidence admissible that would otherwise be inadmissible; or
(b) affect the court's discretion to exclude evidence.
(6) In this section—
identity parade means a contemporaneous presentation (whether by a physical line‑up or by means of images) of a number of persons to a witness for the purpose of identifying a person.
I consider that s 34AB(3) makes plain that the directions referred to in Domican must be given. The Second Reading Speech contra-indicates any Parliamentary intention that the choice of the word “inform” (as opposed to “warn”) has a consequence that only some lesser or diluted direction is required. This was the view taken by Stanley J (with whom Kourakis CJ and Hinton J agreed) in R v Smith[7] and I agree with it.
[7] (2017) 129 SASR 237.
The structure of the Judge’s summing up
The structure of the Judge’s summing up may be considered in two parts. The first part (just over 22 pages) was his Honour's substantive summing up. The second part (just under four pages) immediately following the above was a dialogue between the Judge and defence counsel at which the jury remained present (contrary to the wishes of counsel). The structure of the Judge’s substantive summing up was as follows.
At pages 1 to 3(.8) his Honour gives customary general directions. At pages 3(.8) to page 5(.3) his Honour turns to the matter of identification evidence and gives general direction concerning identification evidence disengaged from the facts of this case. At page 5(.3) to page 6(.7) his Honour gives some directions concerning identification as applied to this case. At page 6(.7) his Honour stated:
I want to say something to you now about the motive for the prosecution witnesses to lie and, before I do, I think I will just remind you of the identification evidence because of its crucial part in the trial.
From that point at page 6(.7) to page 12(.9) his Honour read out some passages from the transcript (in page order) from the examination and cross-examination of Ms Williams. And then from page 12(.9) to page 16(.7) his Honour read out some passages from the transcript (again in page order) from examination and cross-examination of Ms Castellari. During this process (occupying in total ten pages of the substantive summing up) his Honour only read out the evidence; he did not relate it to issues in the case or to aspects of a Domican warning. His Honour concluded his ten page passage of reading thus:
And that was the end. So, ladies and gentlemen, I am sorry to have taken up so much time about that but it is probably the most important issue in the trial.
Anyway, I was about to and I now return to the topic of the motive for the prosecution witnesses to lie. …
I will return below to the second part of the summing up (the subsequent dialogue between the Judge and defence counsel in the presence of the jury).
The seductive effect of identifications by multiple witnesses
At page 4(.9) to 5(.2) of the first part of the summing up (in the course of general directions concerning identification evidence) the Judge made the following highly unfortunate remark:
Now I am required to mention these dangers to you of identification evidence but I must say to you also that if after careful examination of the evidence of the identifying witness, and you should examine it carefully, you can form a judgment about their reliability and after properly considering the warning which I am giving to you, if you are satisfied about the correctness of the identification of the accused then you are entitled to act upon that evidence. And here you have got two people making the identification of the accused. One person being mistaken is one thing, two people being mistaken about the same person is another thing. [Emphasis added]
The Judge up to that point had generally warned the jury against some of the dangers associated with identification evidence, and had done so in terms of ‘a’ or ‘the’ witness. His Honour then turned to the facts of the present case and stressed that here there were two witnesses (Williams and Castellari) rather than only one. His Honour's words “two people being mistaken about the same person is another thing” can only have meant that the dangers associated with identification evidence in this case were significantly less having regard to the fact that there were these two witnesses.
Contrary to the evident meaning of his Honour's comment, it is a matter of particular and recurring concern that cases of mistaken multiple eyewitness misidentifications are not uncommon.[8] Some, such as Beck, Slater, Dougherty, Virag and Boyd are well known to lawyers.[9] Many others have received little beyond local publicity.[10] As Mr Dyson Heydon QC stated in his 1982 article, Evidence of Identification: The Law:[11]
[T]here is a tendency for repeated error to arise. Several identifying witnesses can each make the same mistake, so that testimony of a second eyewitness does not offer much additional protection.
[8] Some of the following analysis appears in my Judgment in Strauss v Police (2013) 115 SASR 90.
[9] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 1-3, 45; Heydon, ‘Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 134; Jackson, ‘The Insufficiency of Identification Evidence Based on Personal Impression’ [1986] Criminal Law Review 203, 203; Ligertwood, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis, 5th ed, 2011) [4.54] fn 181.
[10] Ligertwood, Australian Evidence: A Principled Approach to the Common Law and the Uniform Acts (LexisNexis, 5th ed, 2011) [4.54] fn 181.
[11] Heydon, ‘Evidence of Identification: The Law’ (1982) 14(4) Australian Journal of Forensic Sciences 134, 137.
Mr Heydon (as Australian editor of Cross On Evidence),[12] has also noted that the central case of Adolf Beck[13] (who was misidentified in separate identification parades by some eleven women who had had relatively intimate dealings with the true offender) led to the establishment of the English Court of Criminal Appeal and that Oscar Slater’s case (another miscarriage of justice through misidentification) led to the establishment of the Scottish Court of Criminal Appeal. He rightly observes:[14]
These and other cases revealed a belief – as events showed, to some extent a naïve one – by police officers, Judges and juries in the accuracy of visual identification.
[12] LexisNexis, Cross on Evidence: Australian Edition, vol 1 (at Service 148 and 149) [1395]. And see generally Re, ‘Eye witness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509.
[13] The story of Adolf Beck is recounted in many places. In Though The Heavens Fall (Cassell & Co Ltd London, 1956) facing page 64, Lord Russell of Liverpool reproduces right profile and front of face police photographs of both Mr Beck and the true culprit, Mr Wyatt (alias Thomas, alias Smith). There certainly are similarities in shape and general composition of the face and each has a not dissimilar moustache. The age appears about the same and the style of conservative dress is the same. One can easily understand that a verbal description that most people would give of one would likely closely fit the other. But looking at the two sets of photographs side by side, the men do not look like twins and the differences are manifest. They are a stunning reminder of the real potential for serious error in identification evidence.
[14] LexisNexis, Cross on Evidence: Australian Edition, vol 1 (at Service 148 and 149) [1345].
The problem, of course, is that it is natural for people to reason that it is unlikely for two or three different persons all to make the same mistake. However, that line of reasoning makes the critical (but not unusual) mistake of assuming that for a number of witnesses to each make a mistake in separate identifications they must do so independently of each other, a circumstance which appears to make such simultaneous mistakes unlikely.[15]
[15] For an informative discussion of the pitfalls of estimations of probabilities in criminal cases generally, and identification cases in particular, see the article: Eggleston, ‘Identification’ (1978) 10 Australian Journal of Forensic Sciences 93. As the author of the acclaimed work Evidence, Proof And Probability (Weidenfeld & Nicholson, 1978) concludes at 109 of the article: “What is important is that we should understand the conceptual basis on which we say that there is a high probability that the accused is the person who committed the crime. The melancholy example of Wigmore and McCormick, and of the prosecutor and the trial Judge in the Collins case, should be a salutary reminder that calculations of probability are not always as easy as they seem”.
In fact such mistakes may not occur independently of each other. The phenomenon of multiple misidentifications is referred to in the scientific literature as the “relative judgment” problem. Put shortly, a number of witnesses in the same case may wrongly identify the defendant simply because he is indeed the one most resembling the real perpetrator. For example, the Virag case involved eight persons mistakenly identifying Virag from a line-up, including a police officer who testified that Virag’s face was “stamped on my memory” from the event;[16] his language was as emotive as it was mistaken. As Glidewell LJ, Hodgson and Buckley JJ pithily observed in R v McGranaghan:[17]
… the identification by Mrs F of the appellant as her assailant was most probably mistaken and the identifications by Mrs G and Mrs L cannot safely be relied upon as being accurate. Nevertheless, since all three ladies did identify the appellant as their assailant, we assume that he and the true assailant must be reasonably similar in build, general appearance and accent, otherwise it is probable that the ladies would not have pointed him out. [Emphasis added]
[16] Re, ‘Eyewitness Identification: Why So Many Mistakes?’ (1984) 58 Australian Law Journal 509, 509.
[17] [1995] 1 Cr App R 559, 574.
Of course, Lord Widgery CJ had previously stated in the seminal decision of R v Turnbull:[18]
First, whenever the case against an accused depends wholly or substantially on the correctness of one or more identifications of the accused which the defence alleges to be mistaken, the judge should warn the jury of the special need for caution before convicting the accused in reliance on the correctness of the identification or identifications. In addition he should instruct them as to the reason for the need for such a warning and should make some reference to the possibility that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken. … [Emphasis added]
[18] [1977] QB 224, 228 (For the Criminal Division of the Court of Appeal constituted by five judges).
The problem has been referred to in Australian decisions. Thus, in 1933 in Craig v The King, Evatt and McTiernan JJ stated:[19]
It seems to us, that, in this passage, his Honor indicated to the jury that the absence of corroboration might be balanced by “a sufficient number” of other witnesses. With all respect, this seems to us to amount to an invitation to the jury to pay regard to the mere fact that four persons gave their sworn opinion at the trial that the driver of the car was Craig and to consider the matter upon the footing that the evidence of each witness acquired additional probative value by reason of the presence of the testimony of the other three. This was calculated to induce, and quite possibly had the effect of inducing, the jury to aggregate rather than to analyse the evidence of these witnesses and to diminish the significance of the failure of other witnesses to identify Craig. [Emphasis added]
[19] (1933) 49 CLR 429, 449. In Craig v The Queen (1933) 49 CLR 429, Evatt and McTiernan JJ noted that in Oscar Slater’s Case there was a strong warning given – but the jury nonetheless convicted.
The matter was considered at some length in the later influential decision of R v Burchielli, where Young CJ, McInerney and McGarvie JJ stated:[20]
Now it often happens that two pieces of evidence, each in themselves unconvincing, will in combination produce a high degree of persuasion of a particular conclusion. The reason is often that the coincidence of the two pieces of evidence would be unlikely if the ultimate fact or conclusion had not occurred. But this is not true of identification evidence. Two unsatisfactory identifications do not support one another in the same way as two primary facts may lead to the conclusion of an ultimate fact. [Emphasis added]
[20] [1981] VR 611, 616.
More recently, in Hirst v Police, Mr Hirst was “identified” as “the Linear Park flasher” by some eight different female witnesses, convicted by a Magistrate, and later acquitted of the charges following a re-trial. In the judgment of the Full Court ordering the re-trial, Duggan J observed:[21]
80. … identification evidence comes into a special category because of the dangers of misidentification. In addition to the usual warning about the dangers of identification evidence, it would be necessary to heed the warning previously referred to, “that a mistaken witness can be a convincing one and that a number of such witnesses can all be mistaken”. … [Emphasis added]
[21] (2006) 95 SASR 260, 274.
The above strictures apply a fortiori in the present case
The above discussion makes plain that even in an assumed context of each of the witnesses independently performing their identification and without contamination of their respective memories, problems such as the “relative judgment” problem may occur.
However, in the present case the situation is considerably worse in that the memory of the critical witness, Ms Williams, was potentially severely compromised by what is known as the “displacement effect”. And the other important witness, Ms Castellari, had not seen the assault at all, and had not identified the appellant as the perpetrator, but simply as a person she saw near her Unit at about the time of the assault.
I turn to consider his Honour's direction to the jury concerning the evidence of Ms Williams in more detail.
The Judge’s directions concerning Ms Rachael Williams (Ward’s partner)
It is well understood that the retrieval of memory process may be affected by what may be referred to as “context cues”.[22] For example, in a traditional physical line-up, or in a photographic array, most witnesses will realise that if the police have gone to the trouble of assembling such a procedure, they must have a suspect in mind. And they will try hard to find a match between their memory and the persons or photographs presented to them. There is therefore a real risk that a photograph array will become a “multiple-choice test”, the witnesses choosing the one that most resembles their recollection of the criminal.[23] Thus, in Pitkin v The Queen Deane, Toohey and McHugh JJ stated:[24]
Another such danger is that a witness who is shown photographs by investigating police will ordinarily be desirous of assisting the police and will be likely to assume that the photographs shown to her by the police are photographs of likely offenders. In that context, and in an environment where the ultimate accused will necessarily be absent and unrepresented, there may be subconscious pressure upon the witness to pick out any photograph of a “suspect” who “looks like” the offender notwithstanding that the witness cannot, and does not purport to, positively identify the subject of the photograph as the offender.
[22] Deutscher and Leonoff, Identification Evidence (Carswell Publications, 1991) 16; Cutler and Penrod, Mistaken Identification: The Eyewitness, Psychology, and The Law (Cambridge University Press, 1995) 113.
[23] Deutscher & Leonoff, Identification Evidence (Carswell Publications, 1991) 28.
[24] (1995) 80 A Crim R 302, 305-306.
The fact that the law recognises, and seeks to guard against, this baseline degree of suggestibility in any formal photographic identification procedure can only emphasise the much higher level of cumulative suggestibility there was involved in this case in the purported identification by Ms Williams.
The present situation comes within what is often referred to as “the displacement effect”. This may occur in a variety of circumstances, but has most often been addressed by the courts in the context of the well-established phenomenon that a memory of a person’s features may be altered by later experiences such as the perusal of photographs or identikit pictures, reading descriptions of the suspect or viewing newspaper sketches of the suspect.[25]
[25] Heydon, “Evidence of Identification: The Law” (1982) 14(4) Australian Journal of Forensic Sciences 134, 138.
The present case was not one where the witness was shown a photograph of a suspect prior to an identification procedure; rather it was a case of the witness being informed who the assailant was prior to an identification procedure (she having previously seen the appellant around the Units before).
Of course, the present case is just as bad as the case where the witness picks out a photograph under the influence of the subconscious memory of another photograph he has previously seen. In the present case, the witness picks out a photograph under the influence of the subconscious memory of the actual person he has previously seen, having been positively informed that he is the offender. Thus, the following strictures of the High Court in Alexander v The Queen are every bit as applicable to the present case as to the factual situation that occurred in the case of Alexander itself:[26]
Lastly, there is the “displacement” effect. Having been shown a photograph, the memory of it may be more clearly retained than the memory of the original sighting of the offender and may, accordingly, displace that original memory. Any subsequent face-to-face identification, in court or in an identification parade, may, on the identifying witness’s part, in truth involve a matching of the man so identified with the remembered photograph, which has displaced in his memory his recollection of the original sighting.
[26] (1981) 145 CLR 395, 409 per Stephen J.
And, of course, after performing a photographic identification procedure in the circumstances of the present case, any residual memory of the person actually seen at the time will be doubly displaced: first by the initial information being supplied that the offender is the appellant; and second by the process of “successfully” picking out the photograph of the man standing trial at which trial she proceeds to give her evidence.[27]
[27] It is well recognised that after a photographic identification process, the witness’ recollection of the culprit and recollection of the photograph are likely to be so merged that the two can no longer be separated. See for example: Deutscher & Leonoff, Identification Evidence (1991, Carswell Publications) 28-31.
As noted above, in his summing up the Judge initially gave a number of warnings concerning identification evidence generally and later read out a number of extracts from the evidence. However, he did not link particular relevant aspects of his warning to particular aspects of the transcript. In particular, his directions concerning the evidence of Ms Williams fell considerably short of what was required in circumstances which presented a serious danger of a subconscious bias of Ms Williams to select a photograph of the appellant as being that of the offender sought by police.
The closest that his Honour got to a specific direction as to the displacement effect was at page 5-6 of the summing up in the following paragraphs in which he addressed the two witnesses Williams and Castellari together. This method of approach was itself unfortunate because different considerations applied to each of the two witnesses. The passage (with paragraphs numbered for convenience) is as follows:
1. You will remember the identification, or recognition, was in the course of a frightening incident. How long elapsed between the observation of the culprit and the subsequent identification in the photographs. Did anything occur between the time of the observation and the identification to the police which could have contaminated the witness's memory of the culprit. How sure was the witness in selecting the accused[?]
…
2. There are at least four possibilities that come to mind, ladies and gentlemen, and there may be more. One possibility is that they correctly and accurately identify the accused as the culprit. That is what the Crown say. A second possibility is that they honestly identified the accused as the culprit but mistakenly. A third possibility is that they dishonestly identified the accused, well knowing it was not him who was the culprit but doing it to get his mother evicted from the unit she lived in, and that is a scenario that is put to you by the defence. But, of course, bear in mind the defence do not have to prove that, rather the Crown have to prove beyond reasonable doubt that that was not the case.
3. Another possibility is that they wrongly but honestly thought it was the accused, the culprit, and, when they saw the photos, they subconsciously identified the person they had seen coming in and out of Mrs Blundell's unit and not the person who was at the scene of the assault. And that is another possibility that the defence advance for your consideration, saying that should cause you a reasonable doubt.
4. Rachael Williams identified Blundell during the photographic identification on 6 April 2016, seventeen days after she witnessed the attack on Jason Ward in her front yard. You have seen a recording of that identification procedure in Exhibit P3 in which she selected the accused from a series of photographs. You will have that with you in the jury room when you retire to consider your verdict, together with a machine that will permit you to play it.
…
5. If the witness already knew or had already seen the accused, you should consider whether the identification of the photos has any value at all. If she had seen the accused before, she may have been doing no more than identifying a person that she had seen before and not identifying the perpetrator.
At paragraph 1, the Judge poses a question as to both witnesses: “Did anything occur between the time of the observation and the identification to the police which could have contaminated the witness's memory of the culprit. How sure was the witness in selecting the accused[?]” But his Honour does not elaborate on the particular circumstances concerning Ms Williams which should have been separately and specifically directed upon. Further, to ask the question posed by his Honour “How sure was the witness in selecting the accused?” is to ask exactly the wrong question; the displacement effect may make the witness very “sure” indeed - but also commensurately wrong.
At paragraph 3, his Honour speaks in the plural in relation to both witnesses (Ms Williams and Ms Castellari) and gives a somewhat puzzling direction ostensibly concerning the position of both. One difficulty is that it is very hard to say exactly how various jurors not familiar with the displacement effect would interpret what his Honour was trying to convey. One interpretation is that his Honour is suggesting that the defence case is that the witness [Ms Williams] “wrongly but honestly thought that the accused was the culprit, and, when [she] saw the photos, [she] subconsciously identified the person [she] had [at some time previously] seen coming in and out of Mrs Blundell's unit and not the actual person who was at the scene of the assault.” However, even so interpreted this gives no real help to the jury concerning the displacement effect. Paragraphs 4 and 5 take the matter little further.
The above directions critically omit a clear and comprehensive compilation of the important matters indicative of the displacement effect actually being operative, namely:
A. That Ms Williams had previously seen the appellant at the Units;
B.That Ms Williams initially stated in the 000 call that she did not know who the offender was and could not identify him;
C. That Ms Williams was later told at the meeting of 24 March 2016 that the offender was in fact the appellant; and
D. That it was only after being given that information that Ms Williams picked the photograph of the appellant in the photographic identification procedure.
In short, what was required was a clear and specific direction concerning the dangers of the displacement effect as it applied to the evidence of Ms Williams together with specific reference to these relevant points A to D.
The relevance of an identification / recognition distinction?
There is, of course, something of a distinction between identification and recognition. The matter was well put by Blow J in R v Carr thus:[28]
61. As Boardman and Turnbull illustrate, “recognition” cases will often involve just as much danger of mistaken identification as cases involving persons first seen at the times of their alleged crimes. It would therefore be illogical to hold that a warning as to the dangers of mistaken identification of the sort discussed in Domican need never be given in a recognition case. Obviously, such a warning would be inappropriate when the witness is familiar with the appearance of the accused and the circumstances of the recognition leave little scope for any chance of a mistake. Whether such a warning is necessary in a recognition case must depend on all the relevant circumstances, including the degree of familiarity of the witness with the accused, the circumstances in which the accused was previously seen by the witness or known to the witness, and the circumstances in which the accused is alleged to have been seen by the witness at or about the time of the crime. …
[28] (2000) 117 A Crim R 272, 289. See also Davies v The King (1937) 57 CLR 170, 181 (Latham CJ, Rich, Dixon, Evatt and McTiernan JJ); Mills v State of Western Australia (2008) 189 A Crim R 411, 432 (Buss JA).
I consider that such a distinction has very little part to play in the present case. Indeed, the critical evidence of Ms Williams presents the interesting spectacle of the witness originally eschewing (in the 000 call) any suggestion whatever of “recognising” someone she knew but at trial taking the different line that she had in fact seen the appellant prior to the day of the assault and that he had “looked familiar”. In such circumstances, nothing is to be gained by resorting to labels; one must directly consider whether the dangers that may have arisen in the case have been adequately addressed by the trial Judge.
The submissions at the end of the summing up
The significance of the deficiencies in the summing up concerning the evidence of Ms Williams (and other matters) was appreciated by trial counsel who, at the end of the summing up, asked in the normal way to make submissions for a re-direction in the absence of the jury thus:
[HIS HONOUR:] In a moment I will ask you to retire and consider your verdicts, before I do, is there anything either counsel want to raise?
MR STRATTON-SMITH: No, your Honour.
MR FOWLER-WALKER: Your Honour, I have a number of submissions that might be best done in the absence of the jury.
HIS HONOUR: No, you tell me what the submissions are.
This was a surprising response by the Judge. For a long time now, Judges in South Australia have heard submissions for re-directions in the absence of the jury. Apart from anything else, this permits counsel and the Judge to speak freely and avoids the spectre of a mistrial at such a late stage of the proceedings.
However, as directed by his Honour, counsel proceeded to make submissions in the presence of the jury concerning a substantial number of points. On the matter of the displacement effect, the following dialogue occurred:
MR FOWLER-WALKER: Your Honour directed the jury that if one person is mistaken that is one thing, but to have two people mistaken and then said that defence counsel went through the timing of the incident but didn't set it out.
HIS HONOUR: Say that again?
MR FOWLER-WALKER: ‘Defence counsel addressed you on the timing of the assault and then the meeting with the Housing Trust’, but your Honour did not set out how important that timing was as to why Ms Williams might have adopted what Ms Castellari saw incorrectly, consciously or unconsciously. So it's not a case of two witnesses simultaneously picking out the accused, it's the contamination, on the defence case. That four days later Ms Williams doesn't know who it is and has a meeting with Ms Castellari.
HIS HONOUR: Do you follow that point, ladies and gentlemen, there was a meeting of some sorts afterwards? It may be that one or both of them heard something at a meeting, suggesting that the perpetrator was Ms Blundell's son and either deliberately or subconsciously adopted that as a belief, and the identification subsequently was based on that contamination from the meeting, rather than a genuine recognition or identification of the perpetrator at the scene.
Yes.
In circumstances where there was a special need for particularly clear directions by the trial Judge in an identification case (as established by both the common law[29] and s 34AB(4) of the Evidence Act 1929), I think it unfortunate that counsel was compelled to make his submissions in front of the jury. This was no doubt a surprising development for counsel and, I venture, somewhat off-putting, which may explain the slightly garbled way in which the passage commenced.
[29] Domican v the Queen (1992) l73 CLR 555.
As noted above, there were agreed facts that a specific meeting with particular attendees was held on 24 March 2016 at Unit 6 and there was specific evidence from Ms Williams that she did hear at that meeting that the appellant was the offender. However, his Honour chose to here refer to this important matter in rather nebulous terms as “a meeting of some sorts afterwards” and “[i]t may be that one or both of them heard something at a meeting …” [Emphasis added].
Further, as part and parcel of this matter, there was a need to direct the jury clearly as to the significance of the initial statements by Ms Williams in the 000 call that she could not recognise the offender (despite the fact that she had seen the appellant at the Units previously) and her later volte face of identifying the appellant subsequent to the meeting on 24 March 2016.
All in all, I do not think that the occurrence of this dialogue properly discharged the Judge’s obligations in an identification case such as this. The words reproduced above fell well short of the required clear directions with the authority of the Judge. Indeed, it may well have appeared to jurors to be little more than the reluctant hearing of another “point” being desperately put by another lawyer about something quite nebulous.
Directions concerning the evidence of Ms Castellari
Counsel for the appellant also submitted that the summing up was defective for want of adequate analysis of the evidence of Ms Castellari. Thus he submitted that there should have been more emphasis on the fleeting nature of her purported identification of the appellant in the split second he turned his head as the sensor light came on. He emphasised an apparent inconsistency between the evidence she gave as to the appellant’s attire (“a light-coloured sweater-type thing with a zip-up the front”) and the evidence given by Ms Williams as to the attire worn by the perpetrator (“[d]enim jeans, a light T-shirt”). He submitted that, in any event Ms Castellari did not see the man outside her Unit carrying the garden ornament used in the assault, but only a mobile phone; and that given that the assault took place outside Unit 6 and the ornament was later found on the side of Unit 1, if the appellant was the man who she saw, he would have been carrying the garden ornament to have been the assailant. Counsel also noted that there was a path that went around the back of the Units that could have been used by the assailant without being seen by her.
It may well be that his Honour should have said more about such matters, but I will rest my judgment on Ground 2 of Appeal on what I consider to be plain error of approach to the critical evidence of Ms Williams as I have explained above. Accordingly the guilty verdict must be set aside.
Ground 1 of appeal
Under Ground 1 of Appeal, the appellant contends that the verdict is unreasonable within the meaning of the High Court decision in M v The Queen[30] and that there should be no re-trial. He seeks judgment and verdict of acquittal.
[30] (1994) 181 CLR 487.
I have considered the whole of the evidence and all of the appellant’s written and oral submissions as to numerous factual matters (to some only of which I have briefly alluded to above) in the light of the precepts in M v The Queen and the subsequent decisions of the High Court concerning the correct approach to this ground of appeal.
However, I consider that none of the matters referred to by counsel (or their cumulative effect) are of the nature that should logically preclude a jury, properly directed, from reaching satisfaction beyond reasonable doubt. I refer in this regard to the decision of this Court in R v Place[31] wherein the Court approved the following statement of the Victorian Court of Appeal in R v Klamo:[32]
[31] (2015) 124 SASR 467, 493 [78] (Sulan, Peek and Lovell JJ).
[32] (2008) 18 VR 644, 653-654 (Maxwell P, with whom Vincent and Neave JJA agreed).
38. The approach required of appellate courts in considering the “unsafe and unsatisfactory” ground involves the following steps:
1. The court of criminal appeal must ask itself whether, upon the whole of the evidence, it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.
2. In considering that question, the appeal court must bear in mind that the jury has the primary responsibility of determining guilt or innocence and has had the benefit of seeing and hearing the witnesses.
3. In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced.
4. It is only where a jury’s advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred.
39. A guilty verdict can only be said to have been “reasonably open” to the jury if there was no aspect of the evidence which obliged — as distinct from entitled — the jury to come to a different conclusion. In Libke v The Queen, Hayne J (with whom Gleeson CJ and Heydon J agreed) said in relation to the “unsafe and unsatisfactory” ground:
But the question for an appellate court is whether it was open to the jury to be satisfied of guilt beyond reasonable doubt, which is to say whether the jury must, as distinct from might, have entertained a doubt about the appellant’s guilt. It is not sufficient to show that there was material which might have been taken by the jury to be sufficient to preclude satisfaction of guilt to the requisite standard.
40. In other words, the question posed in M v R, namely,
Was it reasonably open to the jury to be satisfied beyond reasonable doubt of the accused’s guilt?
requires the court of criminal appeal to decide: … whether the state of the evidence was such as to preclude a jury acting reasonably from being satisfied of guilt to the requisite standard.
To adopt some helpful metaphors from recent interstate appellate decisions, the question is whether there was a “solid obstacle to reaching a conclusion beyond reasonable doubt” or whether, instead, the “path to a conviction was open”. [Citations omitted]
In the South Australian decision of R v Shah, there adopted as a helpful metaphor, Doyle CJ stated:[33]
4. The real obstacle to acceptance of the prosecution case is, as Sulan J says in his reasons, the evidence from the security cameras strongly suggesting that Mr Shah was still at the hotel when the attack was happening. I agree with Sulan J that there was no basis upon which the jury could have been satisfied that the attack occurred later than Sulan J puts it, or that the security cameras displayed incorrect times. It was not open to the jury to speculate that, for some unknown reason, the evidence about the time of the attack, or from the security cameras, was unreliable. There was simply no basis upon which the jury could put that evidence aside. This body of evidence is, on the material before the jury, a solid obstacle to reaching a conclusion beyond reasonable doubt, based upon the identification evidence and the other circumstantial evidence, that Mr Shah was a participant in the attack. [Emphasis added]
[33] [2007] SASC 68.
I conclude that, had there been adequate jury directions, it could not have been established that a guilty verdict would have been unreasonable. I reject Ground 1 of Appeal.
Disposition of the appeal
I would therefore allow the appeal and set aside the conviction. There is a discretion to enter judgment of acquittal in such circumstances but I consider that an order for a re-trial is the appropriate exercise of the discretion.
HUGHES J: I would allow the appeal. I agree with the order proposed by Peek J and with his reasons.
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